RE BAL TAMANG CHANDRA BAHADUR

CAMP 17/2025, [2026] HKCA 1311

On appeal from [2024] HKCFI 66

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 17 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO. 1335 OF 2020)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

Background

1.  This is the applicant’s renewed application for extension of time to appeal against the decision of Deputy High Court Judge To (“the Judge”) dated 3 January 2024 ([2024] HKCFI 66) refusing to extend time for him to apply for judicial review and dismissing his application for leave to apply for judicial review against the decision of 5 September 2019 of the Torture Claims Appeal Board (“the Board”).  By its decision, the Board refused to allow the late filing of the applicant’s notice of appeal against the decision of 22 February 2019 of the Director of Immigration (“the Director”) which rejected the applicant’s non-refoulement claim.    

2.  The applicant had applied for legal aid but the application was refused by the Director of Legal Aid.

3.  Under Order 59 rule 14A (1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  Having considered the papers filed in the application, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant is a national of Nepal now aged 41.  On 18 April 2013, he came to Hong Kong as a visitor.  He overstayed and surrendered to the Immigration Department on 15 January 2014.  He later lodged a non-refoulement claim, the basis of which was set out in detail in [6] of the Director’s decision.  In gist, the applicant claims he will be harmed or killed by members of a Maoist rebellious group known as “Forum” because previously he was kidnapped by the group but he managed to escape, and the group then accused him of leaking information about its locations and activities.   

5.  By its decision dated 22 February 2019, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk^[4] grounds.  The Director’s decision was sent to the Duty Lawyer Service, which acted for the applicant in the proceeding before the Director, on 22 February 2019. 

The Board’s decision

6.  Pursuant to section 37ZS(1) of the Immigration Ordinance, Cap. 115 (“the Ordinance”), the applicant may appeal the Director’s decision to the Board within 14 days after notice of the decision was given to him. 

7.  By a notice of appeal dated 12 March 2019, and received by the Board on the same day, the applicant sought to appeal the Director’s decision.  The applicant’s notice of appeal was therefore filed outside the 14-day period.  

8.  Section 37ZT(1) of the Ordinance that was in place in 2019 provides that: “If a notice of appeal filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which (a) must include a statement of the reasons for failing to file the notice within that period; and (b) must be accompanied by any documentary evidence relied on in support of the reasons referred to in paragraph (a).” 

9.  The applicant made an application for late filing of notice of appeal in section 5 of his notice of appeal, and gave a statement in Nepalese.  The Board understood the applicant to be stating that the Director’s decision was given to him on 27 April 2019 by the Director, thus he was late[5].  

10.  As required by section 37ZT(2) of the Ordinance, the Board proceeded to decide, as a preliminary issue without a hearing, whether to allow the late filing of the notice of appeal.  By its decision dated 5 September 2019, the Board refused to allow the late filing of the applicant’s notice of appeal.  The Board found that the applicant’s notice of appeal was late by one day, and took the view that the applicant’s reference to “27 April” should be a typo as the date post-dated the filing of the notice of appeal.  The Board had regard to the fact that the Director’s decision was sent to the Duty Lawyer Service on 22 February 2019 and there was no evidence of delay of the part of the Director, and concluded there was no basis to allow the late filing of the notice of appeal.[6]

The Judge’s decision

11.  On 29 June 2020, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision.  Order 53 rule 4(1) of the Rules of the High Court provides that an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose.  In the applicant’s case, the three-month period expired on 4 December 2023, and his Form 86 was late for more than 6 months.  The applicant provided no explanation for his delay in the Form 86 and the supporting affirmation.  Nor did he provide any ground for seeking relief.   

12.  The Judge listed the application for a hearing on 4 December 2023.  The applicant was absent at the hearing.  By a Form CALL-1 dated 3 January 2024, the Judge refused to extend the time for applying for judicial review and dismissed the application for leave to apply for judicial review, holding that the applicant had failed to provide an explanation for his serious delay and his intended judicial review had no prospect of success. 

Applications for time extension

13.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the applicant may appeal to the Court of Appeal against the Judge’s decision within 14 days after it was made.  The 14-day period for the applicant to appeal ended on 17 January 2024.

14.  By a summons filed on 17 October 2024, the applicant applied for an extension of time to appeal the Judge’s decision.  The Judge dealt with the application on paper, and by his decision handed down on 22 November 2024 ([2024] HKCFI 3227) refused the application.  In gist, the Judge rejected the applicant’s reasons for the delay and considered his intended appeal had no merits. 

15.  The applicant now makes a renewed application for time extension to this Court. In considering whether to extend time for appealing against the refusal of leave to apply for judicial review, we will take into account: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

Our reasons for decision 

16.  The applicant was late by nine months, which is a very serious delay.  In his time extension application made to the Judge, the applicant explained that he did not receive the documents from the Court, including the Judge’s decision, and he was only informed of the refusal of his application for leave to apply for judicial review on 1 August 2024.  This was when he was transferred to Tai Tam Gap Correctional Institution after serving his prison term in Tai Lam Correctional Institution.  The Judge did not accept the explanation having regard to the fact that the Form CALL-1, the court order and other court documents were sent to the address provided by the applicant to the Immigration Department, which admittedly is his wife’s address, and they had not been returned by the Post Office.  We see no reason to differ from the Judge’s view that the serious delay has not been satisfactorily explained.  This being the case, the applicant has to show that his intended appeal enjoys a real prospect of success.

17.  In considering the merits of the intended appeal, we would adopt the legal principles which have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  It is not the role of this court to examine the decision of the primary decision maker afresh as if it is a fresh application for judicial review.

18.  In his written submission in support of the present application, the applicant made three main points:

(1)     His delay in filing the notice of appeal to the Board was in fact due to his drug addiction and because he felt ashamed, he lied and stated in the notice of appeal that he did not receive the decision in time. 

(2)     As the delay in filing the notice of appeal was not serious, the Board should also have regard to the merits of his case as disclosed on the available materials, relying on this Court’s decision in Re Karamjit Singh [2018] HKCA 460 at [14].

(3)     A lot of things happened in the period after the Board gave its decision.  First, his wife, who is Hong Kong resident, gave birth to their daughter on 16 November 2019.  Second, the daughter underwent a surgery at Queen Mary Hospital in mid-December 2019.  Due to stress, the applicant had a relapse in his drug addiction.  He was arrested for drug related matter on 15 January 2020 and was in jail custody until 21 May 2020 when he was released and transferred to be detained at the Castle Peak Bay Immigration Centre.  Eventually, on 29 June 2020, he filed his Form 86.

19.  In our view, the core issue in this renewed application is whether the Judge was correct in concluding that the applicant’s intended judicial review had no realistic prospect of success.  This, in turn, entails a consideration of whether the Board erred in not allowing the late filing of the applicant’s notice of appeal.  The issue turns on the second point in the applicant’s submission, namely the Board erred in failing to give consideration to the merits of the applicant’s claim and whether the Judge was correct in taking the view that this was an irrelevant to the Board’s exercise of discretion under section 37ZT(3) of the Ordinance.

20.  In its decision, after finding that the applicant’s notice of appeal was late by one day, the date of “27 April” was a typo, and the Director’s decision was sent to the Duty Lawyer Service on 22 February 2019, the Board went on to observe that it had a discretion to permit late filing of a notice of appeal under section 37ZT of the Ordinance.  After citing the section, the Board concluded that[7]:

“As set out above, the [Director’s decision] was sent to the duty lawyer services (for an [sic] on behalf of the Appellant) on 22 February 2019, there is no evidence to support that there was any delay on the part of the Director, the Board has no basis on which to exercise any statutory discretion to extend the time limit.”

21.  In upholding the Board’s decision under section 37ZT, the Judge reasoned at [18] to [20] of the Form CALL-1 that:

“18. The issue raised by this leave application is the propriety of the Board’s Decision refusing the Applicant’s late filing of the NOA, not the merits of his non-refoulement claim. Hence the merits of his non-refoulement claim is [sic] totally irrelevant.

19. For reasons as stated in Paragraphs 14 and 15, the Board found the Applicant had provided no explanation for the delay, albeit of only one day. He has provided no evidence in writing which could satisfy the Board that he had exercised all due diligence to file the NOA within time but failed because of circumstances beyond his control. Though not so expressly mentioned, the Board obviously had no knowledge of any other relevant facts which would support his late filing. The Board had directed its mind to the relevant provisions under the Ordinance relating to late filing of the NOA. It applied the law correctly to the facts it found and came to the inevitable conclusion that the Applicant had failed to satisfy the Board that he had exercised all due diligence to file the NOA within time but failed because of circumstances beyond his control.

20. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to late filing of NOA; correctly identified the issues raised by the late filing and observed a very high standard of fairness.  The Board made its decision in accordance with Section 37ZT.  The Decision is one of finding of fact and applying the law to the facts.  The facts found or relied on by the Board are incontrovertible.   In any event, such finding is solely within the province of the Board to make which the court in a judicial review will not interfere save for errors of law, procedural unfairness and irrationality.  This Court could not detect any error of law in the Board’s finding of fact or its application of the law to the fact.  This Court could find no procedural unfairness at any stage of the proceedings. The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.  For the above reasons, leave to apply for judicial review is refused.”

(emphasis added) 

22.  The version of section 32ZT(2) and (3) of the Ordinance that was in place in 2019 when the Board considered the applicant’s application for late filing of his notice of appeal provides that:

“(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of—

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3)   If the Appeal Board is satisfied that by reason of special circumstances, it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice, inform the person filing the notice of the Board’s decision.”

23.  This Court had in several decisions considered the exercise of the discretion under section 37ZT(3), and held that:

(1)      The Board should follow the three-stage enquiry identified in The Secretary of State for the Home Department v Begum [2016] EWCA Civ 122 at [14].

(2)      Even where there is a serious or significant delay for which no good reason is given, the Board should move to evaluate all the circumstances of the case that it knows of with a view to dealing justly with the application.

(3)      The discretion to allow late filing of notice of appeal is exercisable when it would be unjust not to do so by reason of special circumstances. In this connection, the Board should consider the merits of the intended appeal.  It would be unjust not to allow the late filing of a notice of appeal where the appeal is meritorious:

See Re Khan Kamal Ahmed [2019] CACV 377 at [16]-[20]; Re Qasim Ali [2019] HKCA 430 at [23]-[27]; Re Villarosa Rhea Limbaga [2024] HKCA 95 at [14]-[15] (leave to appeal) and [2024] HKCA 655 at [14] (appeal); and Re Mohammed Aslam [2026] 1 HKLRD 161 at [13]-[14].  It should be noted that section 37ZT was amended on 1 August 2021[8] with subsection (2)(b) being removed and subsection (3) being substituted[9].   

24.  In the present case, the Board after identifying that the delay was for one day, stopped at finding there was no good reason for the delay.  It did not go on to the third stage to evaluate all the circumstances of the case or to consider the merits of the intended appeal.  In our view, there are merits in the applicant’s complaint that the Board should have considered the merits of his claim is reasonably arguable.  It is reasonably arguable that the Board erred in law in the application of section 37ZT(3) and had failed to take into account relevant consideration in deciding on the exercise of discretion as to whether to allow the late filing of the applicant’s notice of appeal.  We also note that the applicant had in his written submission provided explanations for the serious delay in bringing his application for leave to apply for judicial review.  While we acknowledge that the applicant had not explained the delay when he made his leave application in the Court below, such failure will have to be considered against the merits of his intended judicial review.    

25.  In considering the Board’s decision, the Judge did not refer to the principles set out in [23] above.  We are unable to agree with the Judge that the merits of the applicant’s non-refoulement claim was an irrelevant consideration when the Board decided whether to allow the late filing of his notice of appeal.  It also seems to us from reading [19] of the Form CALL-1[10] that the Judge might have been distracted by the new section 37ZT(3) introduced by the 2021 amendment[11] instead of focusing on the provision that was in force when the Board considered the applicant’s application for late filing of notice of appeal and the legal principles on which the Board should have acted in exercising its discretion.  

26.  Having regard to the legal principles and analysis discussed above, we are of the view that the applicant’s intended appeal against the Judge’s decision has a real prospect of success.  Although his delay in pursing the appeal is serious and there is no satisfactory explanation for it, the merits of the intended appeal is the most important consideration. 

Disposition

27.  For the above reasons, we extend the time for the applicant to appeal the Judge’s decision.  We direct the applicant to lodge a notice of appeal within 28 days from the date of this judgment.

28.  With a view to saving time and costs, we direct that a copy of this judgment be sent to the Director through the Department of Justice so that consideration may be given to a consensual disposal of the appeal to be filed.